How the Summit can drive a new approach to CEQA reform

(photo credit: fox_kiyo/flickr)

When the governor quietly signed last year’s CEQA reform bill, SB 743, many groups with a stake in the state’s complex environmental law expressed concern about the legislation’s scope (“only very marginal improvement,” grumbled business leaders), its special deal for the author’s home-town sports team (“a disappointment,” said environmentalists), and, well, the eerie silence from labor groups that were said to be heavily involved in approving the bill’s final language.

While some city planners and CEQA practitioners applauded the changes that did make their way into Sen. Darrell Steinberg’s final legislation—including a proposal to simplify the CEQA process for environmentally-conscious transit-oriented development—last year’s arduous debate showed just how difficult the lasting “peace treaty” on the issue sought by Sen. Steinberg could be to achieve legislatively.

But that doesn’t mean the end of efforts to bring greater clarity and certainty to the CEQA process. It may simply call for a different approach—one the Summit Regulations Action Team has begun to explore over the last two months by offering assistance to the state agencies tasked over the next several months with making Steinberg’s legislation a reality.
In January, the Summit sent a letter to the governor proposing to create a group of SOAR teams (“Streamline Our Agency Regulations”) to assist the administration with streamlining a focused group of regulatory processes, including CEQA and the pressing issue of transferring water during a time of drought. The teams, consisting of experts in their respective fields, offered to work with public agencies to identify a group of regulatory processes that could be streamlined, removed, or could benefit from tracking-technology.

How to ensure CEQA provides certainty, preserves environment

The Regulations Team followed up with a letter in February to the governor’s Office of Planning and Research (OPR), the state body tasked with drafting the administrative regulations—called CEQA guidelines—that will define how Steinberg’s changes will actually work. The team’s letter offered a detailed analysis of OPR’s preliminary evaluation of the legislation, outlining several areas where OPR’s guidelines could encourage sustainable economic growth, while also maintaining CEQA’s original intent: to protect the environment.

“The many efforts over the years to modernize and remove the uncertainties in the CEQA process through legislation have not been successful. The purpose of the CEQA SOAR team is to focus regulatory modernization away from third-rail legislative issues in favor of a focus on processes that can be improved without new legislation” says Quay Hays, one of the Regulations Action Team leaders and the CEO of GROW Holdings, a sustainable development and renewable energy company.

“Our approach is to work with the agencies to identify and implement ways to simplify these complex regulations and provide clarity and transparency to the process while continuing to ensure that California’s highest environmental standards are met.”

Four ways to improve the CEQA process

In the Summit letter to OPR, two members of the Regulations Action Team—Jennifer Hernandez, a partner at the law firm Holland & Knight, and Jason Brandman, vice president at the environmental consulting firm First Carbon Solutions—detail four areas, in particular, where OPR can add certainty and clarity to the CEQA process in its soon-to-be-completed guidelines:

Eliminate CEQA lawsuits based on the impact of “traffic delay:” Mindful of several high-profile cases—most notably, the San Francisco Bike Plan—where opponents of infill development have delayed green projects by filing environmental lawsuits over the proposals’ impact on car traffic, the Summit letter “applauds” OPR’s efforts to identify a more environmentally-friendly metric. The Summit Regulations Action Team notes that planners will still be required to study traffic impacts under an array of existing laws—in Congestion Management Plans, for example, as well as efforts to meet air-quality thresholds. But the SOAR team still cheers the elimination of rules that require all projects to prove they won’t impact local drive times. As the letter puts it: “It is nevertheless a positive step that traffic delay cannot serve as a basis for a significant impact finding for infill projects.”

Steer clear of Vehicle Miles Traveled: Steinberg’s legislation didn’t define exactly what metric should replace CEQA’s complex existing standard for measuring traffic (an unpopular and complex process called “level of service”). Instead, it directed OPR to study other approaches. One alternative OPR offered in its preliminary review is “Vehicle Miles Traveled,” a measurement of the number of miles traveled by cars generated by or attracted to a project. This is a popular concept among many environmentalists and transportation funding advocates, in particular, who view VMT as a potential replacement for the state’s obsolete gas tax. The SOAR Team, though, expressed concerns about its impact on the already cumbersome CEQA process: “Introducing VMT as an untested new methodology for traffic evaluation will only increase CEQA’s uncertainty, delay and cost,” the SOAR Team writes, proposing that OPR instead allow local agencies to consider the appropriate metric for their communities.

Cut back multiple levels of CEQA review: While Steinberg’s bill has started an important new debate about the appropriate way to measure traffic impacts in urban areas, the SOAR Team notes another, often overlooked, step taken by the legislation: a provision that allows developers whose projects comply with local plans that have already undergone environmental review to avoid further CEQA lawsuits. As Steinberg pointed out last year, this new exception could speed up infill development in a range of popular walkable neighborhoods like Rockridge in Oakland or Midtown in Sacramento. “We are strongly supportive of Guideline revisions to reinforce and clarify CEQA’s current streamlining provisions, particularly in relation to compliance with plans for which CEQA compliance has already occurred,” the SOAR Team writes, offering to support state or local leaders struggling with this issue. “Our SOAR Team stands ready to assistant interested government agencies in streamlining CEQA processes.”

Clarify legal status of projects that meet existing environmental standards: The SOAR Team also encourages OPR to look for ways to look for other ways to reduce the often-duplicative review CEQA requires—echoing calls made during last year’s debate that CEQA should be integrated into the dozens of environmental laws that have been put on the books since it passed in 1970. As the letter puts it: “We are particularly supportive of clarifying the fact that compliance with existing environmental-protection standards, which exist in statutes, laws, and permit programs, provides substantial evidence that a regulated impact is avoided, minimized, or reduced to a less-than-significant level.” The SOAR Team notes that a previous OPR revision along similar lines was overturned in a court decision, but points out that decision related only to a “fair argument” standard and not the stricter “substantial evidence” standard now being proposed. “There is ample case law supporting the fact that compliance with environmental standards provides substantial evidence that a project impact has been mitigated to less than significant levels,” the letter concludes, “and we support updating the CEQA Guidelines to clarify this important issue.”